Like Filling Out Lottery Tickets: New York State Rolls Out Uncertified Voting Systems for Fall Preview

Despite the steady stream of keep our levers resolutions emanating from county legislatures throughout the state, the State Board of Elections is carrying through with a pilot Op-scan project for the fall 2009 elections. ETC e-voting education consultant Howard Stanislevic sounds the alarm in this post from his blog e-voter.blogspot.com :

ALBANY -- At a May 12th Commissioners' meeting, after collaborating with the US Dept. of Justice, the New York State Board of Elections cavalierly decided to risk the disenfranchisement of nearly a million of the state's voters, by allowing what one commissioner called a "huge pilot" of uncertified software-driven electronic vote-counting systems around the state in 45 of its 62 counties.

Here are the links to the Commissioners' resolution, and other documents containing the details of the plan:

* Authorizing Resolution 05/12/2009 (PDF 50KB)
* Pilot Plan Narrative 05/12/2009 (PDF 65KB)
* Timeline 05/12/2009 (PDF 492KB)
* County Participation Spreadsheet 05/12/2009 (PDF 42KB)

Over 900,000 voters (read: guinea pigs) could be affected by these irresponsible tests, which one county election commissioner, perhaps unwittingly, compared to filling out lottery tickets. Gambling with the votes of a million New Yorkers is hardly a way to instill public confidence.

The plan contains almost no provisions for manual recounts of the paper ballots to check the computer tallies, other than those that might be obtained through the courts. The only exceptions are for contests with a margin of victory of 1% or less. Full recounts of those contests will be conducted, but we bristle at the suggestion that the victory margin reported by the uncertified voting system will be the one used to determine whether or not the hand count to check the system will take place.

Commissioner Douglas Kellner made a motion at the May 12th meeting to allow any candidate to ask for and obtain a full hand recount. His fellow commissioners defeated it by a bipartisan 3 to 1 vote.

Apparently Kellner's colleagues believe that:

* any candidate can convince a judge that a voting machine didn't count her votes -- even without evidence to support such a claim;

* the judge will also believe that the paper ballots have been preserved inviolate and thereby allow them to be hand counted to find out who really won an election (contrary to a number of previous decisions by the highest court in the State -- not to mention the highest court in the land); and

* the court would gladly spend taxpayers' money for such high-minded purposes as convincing losers of elections, and their supporters, that they really lost fair and square -- even given the amount of money already spent on the new voting systems.

But the voters of New York deserve more than just naive speculation about the ease of obtaining hand counts from a potentially partisan and cost-conscious judiciary. They deserve the actual hand counts if and when they are needed.

So what if the margin of victory happens to be slightly more than 1% (say 1% + 1 vote for example), and the courts deny the recount request? In that case the hand count reverts to only a 3% spot check, per Election Law § 9-211 -- part of the Election Reform and Modernization Act of 2005 that brought us this mess in the first place. If there are no discrepancies found in the spot check, the election could be certified -- which is more than can be said for the voting systems that actually produced the election results.

Unfortunately, the math is unequivocal: in many elections, a 3% audit can reveal absolutely NO discrepancies, and the outcome of the elections can still be absolutely wrong. If that happens, no one will be the wiser.

One other potential safeguard remains for the million voters who will be subjected to this foolish experiment: the long-awaited and yet to be promulgated State Board of Elections auditing regulations known as Part 6210.18. For well over a year now, we have been involved in the drafting of these regulations. They offer the only hope for anything better than the ill-considered 3% spot checks in the Election Law.

A year ago, many of New York's good government groups wrote to the Board, asking for these regulations to reflect best practices. But so far, progress has been slow to non-existent in this area, even as the mad rush to run real elections using potentially fake voting systems continues.

All that said, while the value of certification has been greatly exaggerated, we think it might be fair to say that if done properly, certification can prove that a voting system can work -- not that it actually will work. This weak assurance is of course not sufficient, but it's better than no assurance at all. The only way to be sure to prevent the disenfranchisement of New York's voters by untrustworthy computers, is to hand count 100%, at least until the systems are certified.

We'll be following this story and reporting on efforts to fix this latest debacle and avoid the Floridization of New York's elections. We don't think this is what New Yorkers signed up for when the State accepted $50-million in federal funds to replace its lever voting machines under the Help America Vote Act of 2002 (HAVA). The State has not been able to certify a voting system to replace the levers since then, and as always, it's important to read the law first.

In New York, the law has been decidedly anti-recount. So paper ballots or no paper ballots, the software counts will rule -- just as they did in Florida's 2000 election which brought us Bush v. Gore and ultimately, HAVA itself. Ironic, huh?

The Board did agree to present the matter to the State's Citizens' Election Modernization Advisory Committee. While their opinions are as yet unknown, and probably not binding, at least one member of the group has gone on record as favoring 100% hand counts of ALL votes counted by ANY uncertified voting system. This is in direct conflict with 3 out of the 4 State Board of Elections Commissioners who represent our two major political parties, but unfortunately may no longer be faithfully representing the voters of New York.

Editor's note: Election Transparency Coalition does not endorse op-scan counting with less than a 100% hand-count verification conducted at the polling place on election night.

NY's Testing Lab's Accreditation Pulled - Again

For the second time in two years the National Institute of Standards and Technology (NIST) and the US Election Assistance Commission (EAC) have announced their intention to suspend the accreditation of New York's electronic voting system testing lab, SysTest, Inc. for "failing to comply with program standards."

In a statement released yesterday the New York State Board of Elections announced that SysTest's loss of accreditation would force it to consider the suspension of the software based voting sytems certification testing in New York since the Board requires that all certification testing be performed by an accredited lab.

Although it is likely that this development will delay the certification of the new voting systems past 2009, this is no guarantee that the DOJ will not order the implementation of uncertified voting machines. We must continue to be vigilant.

If you have not done so sign the petition to save out levers and pass it along to your friends.

Write to the State Board of Elections and ask them to stop the "certification" program.

It's now been reported from several sources that when told of the certification problems with these systems, DOJ officials are "speechless."

- Joanne Lukacher

Mission: Possible -- Fight NOW to Retain New York's Lever Voting System!

Under pressure from the U.S. Department of Justice to enforce the ambiguous directives of the Help America Vote Act, and compelled by the state's legislative response, The Election Reform and Modernization Act of 2005, New York has been harried to replace its reliable lever voting machines with uncertified -- and uncertifiable -- software-driven electronic vote counting systems. This needless yet stubborn campaign to dismantle our secure lever voting system has amounted to a veritable crusade waged by some, in the face of wary election commissioners and despite ever increasing alarm about the vulnerabilities of the electronic systems. In order to inform our members, so they may better express their concerns to their election officials and legislative representatives, Election Transparency Coalition offers the following brief history of events:

Help Save New York's Lever Voting System!

In October 2002 Congress passed the Help America Vote Act (HAVA) that among other things, created the US Election Assistance Commission (EAC). HAVA required the EAC to produce voluntary federal voting system standards. It took three and a half years for the first set of these standards to be published in the Federal Register in April 2006. New York proceeded to adopt these voluntary guidelines along with its own set of State standards to certify new voting systems to replace our time tested, reliable lever machines with computers, as required by the State's Election Reform and Modernization Act of 2005 (ERMA) -- but NOT required by HAVA.

To date, no voting system the State of NY (or any other state) has tested has even come close to meeting these standards, although the standards themselves are considered to be far too lax by most computer scientists who have studied them. Our tried and true lever machines continue to function well, and we are about to use them in the 2008 Presidential election. Almost all of their parts are standard items carried by hardware stores, while the balance of the parts can be produced by machine shops. The outlook for replacing the levers in 2009 remains doubtful due to continued problems and delays in the certification process. This has been reported on a weekly basis to the US Dept. of Justice (the DoJ -- who are suing the State Board of Elections) and to the federal judge in their case.

And it's no wonder. In November 2006, just seven months after the current federal standards were published, computer security experts at the National Institute of Standards and Technology (NIST), who under HAVA, advised the EAC on the writing of the standards, published a paper on the need for voting systems to be "software independent." The authors clearly stated that "experience in testing software and systems has shown that testing to high degrees of security and reliability is from a practical perspective not possible." [emphasis added]

But the NY State Board of Elections, its vendors, its testing labs, its not-for-profit watchdog -- the New York State Technology Enterprise Corporation (NYSTEC), and even the DoJ itself, have nevertheless been attempting the impossible. We appreciate their efforts and we feel their pain, but we also believe it's time they faced reality. And they are.

As State Election Commissioner Gregory Peterson said at the Oct. 3, 2008 Board meeting in Albany:

What do we do? Go back to lever machines which probably work better than anything else we've ever had. I'm not saying I advocate that. However, if you have something that works and something that doesn't work, I vote for the thing that works.

Well, we the People of the Empire State, who are perhaps able to speak more freely, are in fact advocating for what works.

While the State will have to return about $50-million in HAVA funds to Uncle Sam, we believe it's a small price to pay for our Constitutional right to vote, to know how our votes will be counted, and to see that our votes will be given full force and effect by way of the lever voting machines. Such things will never be possible with software, which by its very nature is not observable. And this is unconstitutional in our great State.

We are therefore asking the State of New York to:

• end this impossible "certification" mission;
• return the $50-million Title I HAVA funds to the United States;
• continue to deploy ballot marking devices for voters with special needs to comply with HAVA using the remaining $170-million of Title II funds available for this and other purposes; and
• allow the voters of New York to continue to vote in free, fair, transparent and secure elections by retaining our lever voting system.

Your State and County Election Commissioners, who have sworn an oath to protect the voters of New York, have the necessary influence to end this madness. The Legislature will heed their advice, just as they did in 2007 when the commissioners asked for ERMA to be amended to remove any date certain for the replacement of lever machines. And the US Dept. of Justice would not have a case for the replacement of lever voting machines if we simply give back a small fraction of our $220-million of HAVA money. This is indeed a small price to pay to preserve our rights and to avoid the kind of electoral chaos we have been seeing in other states and recently, even in the nation's capitol.

Sincerely,

Andi Novick, Esq.
Founder, Election Transparency Coalition of NY
http://www.re-mediaetc.org

Thomas L. Tedeschi, Esq.
Election Attorney
Queens, NY

Susan Greenhalgh
Communications and Strategy Consultant
Election Transparency Coalition of NY
http://www.re-mediaetc.org

Teresa Hommel
WheresThePaper.org
http://wheresthepaper.org

Howard Stanislevic
E-Voter Education Project
http://e-voter.blogspot.com

Joanne Lukacher
Executive Director
Election Transparency Coalition of NY
http://www.re-mediaetc.org